Maloney v. Smith , 16 Ala. App. 595 ( 1918 )

In actions of trespass quare clausum fregit, the defenses of possession of the locus in quo and of liberum tenementum may be proven under the general issue. L. N. R. R. Co. v. Hall,131 Ala. 168, 32 So. 603, opinion on rehearing; Southern Ry. Co. v. Hayes et al., 183 Ala. 465, 62 So. 874. The foregoing disposes of assignments of error 4, 5, 6, 7, 8, 9, 10, and 11. Besides, it is shown by the bill of exceptions that the defendant had the full benefit of these special pleas under the general issue, and therefore, if the sustaining of the demurrer was error (which we do not hold), it was without any injury to the defendant.

Assignment of error No. 12 is grounded on the refusal of the court to give the general charge as requested by the defendant. Assuming that the charge as requested is properly framed, the facts establishing the rights of the parties were in conflict. The description of the premises as written in the lease, under which the plaintiff held, was: "No. 2009 Second avenue, being the east part, that in now partitioned off." Attached to this east part was a brick structure, which opened into the main room and was used in connection with the business, both by the plaintiff and the prior tenant. Plaintiff insisted that this was a part of the leased premises, and the defendant contra. Parol evidence was introduced pro and con. If the description of the property in a lease is ambiguous or doubtful, parol evidence is admissible to make it certain. 24 Cyc. 916; Ala. Mut. Fire Ins. Co. v. Minchener, 133 Ala. 632, 32 So. 225.

The fact that Smith was the original contracting tenant and subsequently took Krelhaus into partnership in the business did not entitle defendant to the general charge. Krelhaus was the owner of a one-half interest in the restaurant business being done in the house, was a partner with Smith, and was therefore jointly with Smith, in possession of the leased premises. Nor was the formation of this partnership such a subletting of the premises as to violate a condition in the lease against subletting. 24 Cyc. 962.

The foregoing also disposes of assignments 13, 14, and 15.

Charge No. 8, made the basis of assignment No. 16, is argument and was properly refused.

Charge No. 9 was in effect the general charge for the defendant. As had already been pointed out, the defendants were not entitled to this, and its refusal was not error.

Charge No. 13 as requested by the defendant was properly refused. The facts were all before the jury, and it was for them to say whether the trespass was so wantonly or recklessly done as to justify the finding of exemplary damages. Devaughn v. Heath, 37 Ala. 595; L. N. R. R. v. Smith, 141 Ala. 335,37 So. 490; Jackson v. Bohlin, ante, p. 105, 75 So. 697.

Unless an exception to the court's general charge is specifically addressed to that part of the charge which the appellant claims is error, the exception is not so taken as would authorize the appellate court to consider it. Jordan v. Smith, 185 Ala. 591,64 So. 317.

There was ample evidence to justify the jury in finding for more than nominal damages, and hence assignment of error No. 20 is not well taken.

The rulings of the court on the evidence were without error.

There is no error in the record, and the judgment is affirmed.

Affirmed.